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...enemy-combatant option, however, raises a host of thorny legal questions. Since Sept. 11, only two terrorism suspects arrested on American soil - Jose Padilla and Ali Saleh Kahlah al-Marri - have been designated as enemy combatants; the remainder were captured overseas. Both men were held for years in an offshore Navy brig, as challenges to their detentions dragged through the courts. The legality of their detention on those terms has never been cleanly settled. Just days before the Supreme Court was scheduled to hear arguments in Padilla's case in late 2005, the Bush Justice Department moved the case...
...Though compelling, the panel's conclusion is not obvious, and the full court to which the Administration has appealed may disagree (as might the U.S. Supreme Court, if it ever hears the case). The Administration, then, can't necessarily be blamed for trying to treat al-Marri as an enemy combatant so that it could detain him indefinitely and prevent him from rejoining the enemy during the war on terror, right? Except that's apparently not what the Administration...
...Marty Lederman, a visiting professor at Georgetown University Law School, points out, al-Marri was already on ice. He was being held on credit-card fraud and other criminal charges for 16 months before the President abruptly designated him an enemy combatant in June 2003 and had him moved to a military prison. And the move came shortly after a court scheduled a hearing on al-Marri's motion to suppress evidence allegedly obtained through torture...
...long footnote to its opinion, the appeals court suggests what was really going on. As the court explains, al-Marri claimed that the government suddenly named him an enemy combatant merely because it wanted to interrogate him in a way that would have violated the rules of criminal prosecution. Referring to al-Marri's claim, the court says, "we trust that this is not so, for such a stratagem" would violate a Supreme Court ruling that prohibits indefinite detention for the purpose of interrogation. "We note, however, that not only has the Government offered no other explanation for abandoning...
...This sort of deceptive behavior seems a recurring flaw in the Administration's anti-terrorism efforts. The current prosecution of suspected terrorist and U.S. citizen Jose Padilla, for example, almost collapsed because of Padilla's claim that his guards' abuse made him incompetent to stand trial; as with al-Marri, the government has changed its legal approach against Padilla, initially branding him an enemy combatant and then, when it seemed that it might lose its case before the Supreme Court, deciding to charge him criminally. Lederman says the improper reason for declaring al-Marri an enemy combatant will probably doom...